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APPLICATION/REQUÊTE N° 16278/90

Senay KARADUMAN vmJRKEY

Senay KARADUMAN c/TURQUIE

DECISION of 3 May 1993 on the admissibility of the apphcaUon

DÉCISION du 3 mai 1993 sur la recevabilité de la requête

Article 9, paragraph 1 of the Convention Thts provision primanly protects the sphère of private, Personal beliefs, and not every act in the public sphère whtch is dictated by such convictions

The term "practice" in this provision does not cover an act nhich does not directly exptess a heltef, even though it is molivated or influenced bv n

The fact ihat a secular umversify has régulations on students' dress and thaï its administrative services are subject to compliance M ith those régulations does not constitute an interférence M ilh the right tofreedom of religion and belief In this case refusai ofa Turkish university to issue a degree certificate to afemale student who, by submitting for the certificate an identity photograph in whtch she is wearing a Muslim headscarf, dtd not comply with university régulations prohibiting the wearing of such a headscarf

Article 26 of the Convention

a) The exhaustion ofdomeslic remédies may take place after the introduction of an application but musl hâve taken place before the Commission is called upon ta décide on the admtssibihry

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b) An appltcant must make normal use of those domestic remédies which are apparently effective and sufftcient.

As the Turkish administrative courts can examine the lawfulness of an administrative décision in an individual case, an applicant is not required m addition to challenge the lawfulness ofthe administrative régulations on which the décision was based

A

request to the Turkish Council of State to reconsider a final judgment in which

it

apphed estabtished case-law is not an effective remedy.

c) Domestic remédies hâve been exhausted if before the highest domestic body, the applicant has submitted in substance his complaint before the Commission, even without particular référence to the Convention.

(TRANSLATION)

THE FACTS

The applicant, a Turkish national bom m 1966, has a bachelor's degree in pharmacology and is résident m Bursa (Turkey)

The fdcts, as submitted by the parties, may be summansed as tollows

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The applicant, having completed her university studies at the faculty of pharmacology in Ankara, asked the university registry for a provisional certificate stating that she had obtained a bachelor's degree She supplied an identity photograph which showed her weanng a headscarf In a letter dated 28 July 1988 the dean of the faculty informed the applicant that he was refusing to issue the certificate m question, as the identity photograph supplied by the applicant did not comply with die university's disciplinary régulations or with the circular of 30 December 1982 issued by the Higher Education Council He stated that he was prepared to issue the certificate requested on condiuon that the applicant supplied an identity photograph which complied with the régulations

On 19 September 1988 the applicant appealed to the Ankara Administrative Court seeking annulment of the administrative décision of 28 July 1988 She alleged, inter alla, an infnngement of her nght to freedom of religion and the freedom to manifest her religion, as guaranteed by the Turkish Constitution and the Universal Declaranon of Human Rights

In a judgment dated 9 March 1989 the Ankara Administrative Court dismissed die applicant's appieal on two grounds

Firstly, the court noted that Ruie 29 of Ankara University's régulations on degree courses required an identity photograph taken in accordance with the university's ruies on dress" to be affixed to the degree certificate Secondly, the court noted that the circular issued on 30 December 1982 by the Higher Education Council on dress requirements for university students required the laiter to wear clean, simple and smartly ironed clothing, to wear nothing on their heads and to hâve tidily eut haïr In the light of the provisions of the two sets of régulations menUoned, the court held that the applicant was obliged to supply an identity photograph on which her dress complied with the requirements descnbed above

Thirdly, die court noted Uiat on the identity photograph in question the applicant was weanng a headscarf which framed her face in such a way that it concealed her forehead, ears and lower jaw, and that as a resuit this photograph was not adéquate to identify the student concemed

On 25 Apnl 1989 the applicant appealed agamst this judgment to the Council of State She pleaded, inter alia, the inapplicability of the régulations relied on by the Administrative Court when it dismissed her appeal, and further alleged a violation of her nght to freedom of religion, as she had done before the court of first instance She also claimed that her identity card, her passport and her dnving licence camed photographs of her weanng a headscarf

The defence of the administrative authonty (Ankara Umversity) was based on the provisions of the circular of 30 December 1982 prohibiting the weanng of die Muslim headscarf in universities

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In a judgment dated 16 October 1989 the Council of State upheld, by a majonty,

the judgment of 9 March 1989

administrative décision impugned by the applicant was consistent with the university's

régulations on student dress

It held, in the light of its established case-law, that the

In ihe meantime, in a judgment given on 7 March 1989 and published in the Officiai Journal on 5 July 1989, the ConsUtutional Court had declared unconstitutional

a légal provision authonsing the weanng of headscarves in higher éducation

establishments on the ground that the provision in question was contrary to the

pnnciple of seculanty enunciated m the Constitution

Two members of the Council of State expressed the view in iheir dissenting opinion that the university's refusai was null and void because there was no régulation which expressly indicated what form the photograph to be affixed to a degree certificate should take

COMPLAINTS

Before the Commission the applicant complains of an infnngement of her nght

to

freedom of thought, conscience and rehgion, conti"ary to Article 9 of the Convention,

in

that for a penod of two years her degree certificate was withheld from her because

she had not supplied an identity photograph showing her bare-headed, when to appear thus would hâve been incompatible with the manifestation of her religions beliefs

The applicant further complains of discnininanon by the administrative authonlies between female students of foreign nationahty and those of Turkish nationality She asserts that female foreign nationals hâve total freedom as to dress in Turkish universities. whereas Turkish female students are subject to the restrictions mentioned above which infnnge their freedom of religion In that connection she relies on Article 14 of the ConvenUon

THE LAW

The applicant complains of an infnngement of her nght to freedom of religion -ind conscience, given that the way she is required to dress for the idenuty photograph

In

that connection she relies on Article 9 of the Convention

to be affixed to her university degree ceruficate is conffary to her religious beliefs

Under Article 9 para 1 of the Convention, everyone has "the nght to freedom of thought, conscience and religion" This nght "includes freedom to change his rehgion or belief and freedom, either alone or in commumty with otheis and in public or in private, to manifest his religion or behef. m worship, leaching, practice and observance

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1.

As to the exhaustion of domestic remédies

The respwndent Government first plead inadmissibility on the ground of failure

to exhaust domestic remédies.

FirsUy, tiiey observe that the applicant lodged her application with the Commission before she had exhausted domestic remédies, to be précise on the same date as the décision of the administrative court, which \ntA the case at first instance (Ist limb of the objection).

The respondent Government further daim that the applicant, who contested in the administrative courts the administrative décision refusing to issue her a degree certificate, omitted to challenge the lawfulness of the circular of 30 December 1982 on which the impugned administrative décision was based (2nd limb of Ihe objection).

The Government also assert that the applicant omitted to appeal against the judgment of the Council of State. They maintain in this connection that such an appeal, in which the appellant asks the Council of State to reconsider its final judgment, and which may be brought without seeking leave, has become an "ordinary" remedy in die practice of the courts (3rd limb of Ihe objection).

Lastly, the respondent Government maintain that the applicant omitted to invoke in the Turkish courts Articles 9 and 14 of the Convention, on which the complaints she now lays before the Commission are based (4th limb of the objection).

The applicant rejects the arguments of the respondent Government and maintains that she has exhausted domestic remédies.

She maintains that she argued in the Turkish courts that the administrative décision rejecting her request and the circular on which diis décision was based were neither provided for by law nor compatible with the Constitution (2nd limb of the objection). The applicant also asserts that she appealed to the highest national administrative court, namely the Council of State (3rd limb of die objection) and prayed in aid before that court the right to freedom of religion and the principle of non- discrimination, as set forth in the Constitution (4th limb of the objection).

The Commission has examined the submissions of the parties on the subject of die exhaustion of domestic remédies and has reached the following conclusions.

With regard to the Ist limb of the Govemment's objection, the Commission refers to its established case-law, upheld by the Court in its Ringeisen judgment:

"Thus, while it is fuUy upheld Ihat the applicant is, as a nile, in duty bound to exercise the différent domestic remédies before he applies to the Commission, it must be left open to the Commission to accept the fact that the last stage of such remédies may be reached shortly after the lodging of the application but before the Commission is called upon to pronounce itself on admissibihty" (judgment of 16 July 1971, Séries A no. 13. p. 38, para. 91).

Their objection has four separate limbs.

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The Commission recalls that it has previously held that it is not obliged to reject a complaint for failure to exhaust domestic remédies on account of the fact that appeals were still pending at the time when it was introduced (see, among other authonties, Luberti v. lialy. Dec. 7 7 81, D R. 27 p. 181). Accordmgly, it considers diat dus limb of the objection cannot be upheld.

With regard to the pwssibility of seeking the annulment of ihe circular of 30 December 1982 (2nd limb of the objection), the Commission observes that the applicant invoked in the Turkish courts the provisions of the ConsUtution guaranteeing freedom of religion and the principle of non discnminaUon. The Commission also points out that the Turkish administrative courts can examine of iheir own motion the lawfulness of an impugned administrative décision taken in an individual case,

separately from the issue of the lawfulness of the relevant administialive regulauons The courts trying the applicant's case were therefore in a position to give a ruling as to whether there had been a violation of the ConvenUon Consequentiy. the applicant was not obliged to exercise other remédies, including that suggested by the Government (cf , mutatis mutandis, Eur Court H R , Airey judgment of 9 October 1979, Senes A

no

32, p. 12, para. 23, No

9697/82, Dec 7 10 83. DR. 34 p

131)

With regard to the appeal seeking reconsideration ofa judgment mentioned by the Government (3rd limb of the objection), the Commission notes that in Turkish law such an appeal involves asking the court which has given the impugned judgment to reconsider its décision, on the ground that it has made a mistake Ln fact. the court concemed must retry the case if the parties exercise their right to appeal, without there being any fresh évidence

The Commission must assess in the light of each case whelher a particular

domesUc remedy seems to offer the applicant an effective means lo remedy the matier of which he complains {cf. among other authonties. Nos 5577-5583/72, Dec 15 12 75. DR 4 pp 4, 64) The applicant is not required to use a remedy ihat, according to "the setlled légal opinion" which existed at the time, was not of such a nature as to sausfy the complaints {Eur. Court H R., De Wilde, Ooms and Versyp judgment of 18 June

1971, Senes A no

12, p. 34, para. 62).

In ihis case, the Commission notes that in dismissing the applicant's appeal the Council of State applied its established case-law to the effect that students must comply with university régulations on dress. Consequentiy. it considers that in the circumstances of this case an appeal seeking reconsiderauon of the judgment was not an effective remedy for this tyf>e of complaint.

With regard to the possibility of invoking the provisions of the ConvenUon before the Turkish courts (4th limb ofthe objection), the Commission refers to its well- established case-law to the effect that domestic remédies are exhausted when, before the highest national authonty, the applicant has raised in substance the complaint he submits to the Commission, even without referring to the Convention {cf., among other authorities. Nos 7299/75 and 7496/76. Dec 4 12 79, D R 18 p 5). U notes that in dus

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case the applicant. by invoking the nght to freedom of religion and the principle of non-discnmination, as guaranteed by the Turkish Constitution, satisfied the above condition.

That being the case, the Commission takes the view that the objection raised by the Government cannot be upheld It follows that the applicant has sausfied the requirement conceming the exhaustion of domestic remédies, in accordance with ArUcle 26 of the Convention.

2 As to the merits

The Government maintain m the first place that the refusai the applicant complains of did not interfère with her freedom of religion and worship They consider that a person is not prevented from practising her religion either by die fact that she musl go bare-headed on university premises or by the fact that she must provide an identity photograph which shows her bare-headed in order to comply with the university's disciplinary régulations

Secondly, the respondent Government maintain that the obligation to respect the principle of secularity imposed on university students must be held to be congruous with the restrictions provided for in paragraph 2 of Article 9 of the Convention. They observe that the Turkish Constitutional Court, in a judgment dated 7 March 1989. declared unconstitutional a légal provision permilting the wearing of headscarves in higher éducation establishments on the ground that this provision was contiary to the principle of secularity It further held that the wearing of the Muslim headscarf could ïead to daims that those women who do not wear headscarves are atheists, and thus create social conflict

On the other hand, the applicant observes that, alihough she successfully completed her university studies five years ago. she still cannot obtain her degree certificate because she has not supplied an identity photograph on which she musl appear bare-headed. She maintains that covering her head with a headscarf is one of the observances and practices prescnbed by religion.

The applicant further maintains that the university's refusai to issue her with her degree certificate constiiuted an interférence with her freedom of religion and belief which could not be justified by respect for the principle of secularity. She draws a distinction between the principle of seculanty and the question of dress She maintains that seculanty is one of the political principles of Government policy. By weanng a Muslim headscarf or turban an individual merely takes part in a rehgîous practice which does not impinge on the secularity of the State

The Commission recalls thaï Article 9 of the Convention expressly protects "worship, teaching, practice and observance" as manifestations of a religion or belief.

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The Commission has previously ruied that Article 9 of the ConvenUon does not always guarantee the nght to behave in the public sphère in a way which is dictated by such a behef In particular, the term "practice" as employed in Article 9 para 1 does not cover each act which is motivated or influenced by a religion or belief (cf. No. 7050/75, An-owsmith v the United Kingdom, Comm. Report 12.10.78, para 71, DR . 19 p. 5, and No. 10358/83, Dec. 15.12.83, D.R 37 p. 142).

In order lo détermine whelher there has been a violation of ArUcle 9 in this case.

U musl first be ascertained whether the measure complained of constiiuted interférence

with ihe exercise of the freedom of religion.

The Commission observes ihal ihe rules applicable to the identity photographs

to be affixed to degree certificates, alihough they do not form part of the ordinary

disciplinary rules goveming the ddily life of the universities, do form part of the university rules laid down with ihe aim of preserving the "republican", and hence "secular", nature of the university, as the Turkish courts which gave judgment in tins case held

The Commission takes the view that by choosing to pursue her higher éducation

in a secular university a student submits lo those university ruIe*;, which may make die

freedom of students to manifest their religion subject to restnctions as to place and manner intended to ensure harmonious coexistence between students of différent beliefs. Especially in countries where Ihe great majority of the populauon owe

allegiance to one parUcular religion, manifestaUon of the observances and symbols of Ihat religion, without restncuon as lo place and manner, may constitute pressure on students who do nol pracuse Ihat religion or those who adhère to anolher religion Where secular universities hâve laid down dress régulations for students, they may ensure that certain fundamentalist religious movements do not dislurb public order m higher éducation or impinge on the beliefs of others

The Commission notes thaï in the présent case die university régulations on dress require, mter alla, thaï students forbear from weanng headscarves The Commission also takes into considération the observauons of the Turkish Constitutional Coun. which has held thaï the aci of wearing a Muslim headscarf m Turkish universities may constitute a challenge towards ihose who do not wear one

The Commission recalls Ihat il has held to be compauble with the freedom of

religion protected by Article 9 of die Convention the obligation requiring a teacher to observe normal working hours where, as he claimed. thèse clashed with his allendance

X v the United Kingdom. Dec 12381,D R 22 p 27). The

same applies to the obligauon requiring a molorcychçt to wear a crash helmel. which he claimed was incompauble with his religious duues (No 7992/77, X v the Uniied Kingdom, Dec 12.7.78, D R 14 p 234) Tbe Commission considers ihai a siudenl in

a secular university is imphciUy subject, by ihe naiure of things, to certain rules of

conducl laid down in order to ensure respect for the rights and freedoms of others. The régulations of a secular university may also require that the degree certificates issued to students do not reflect in any way Ihe identity of a movemenl owing allegiance to a particular religion in which thèse students may take part

atprayers (No. 8160/78.

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The Commission also takes the view thaï a university degree ceruficate is intended to cerufy a student's capacities for employment purposes, it is not a document intended for the gênerai public The purpose of Ihe photograph affixed to a degree ceruficate is to identify the person concemed. It cannot be used by that person tû manifest his religious beliefs.

The Commission observes that in this case the administrative authorities and ihe Turkish courts found Ihat the university régulations required the applicant to supply an

idenuiy photograph which complied with the régulations on dress. U further notes thaï the university authorities' rejection of the applicant's request for her degree certificate

is not final but condiuonal. in so far as issue of the certificate is dépendent on

réalisation of the condition that the applicant produce an identity photograph which compiles wiUi the régulations

The Commission also notes that the applicant has not claimed thaï during her studies al the university she was obliged, against her will, to observe the regulauons on dress

That being the case, the Commission considers, having regard to Ihe requirements of a secular university System, that regulating students' dress and refusing them administrauve services, such as the issue of a degree certificate, for as long as they fait to comply with such régulations does not, as such, conslilule an interterence with freedom of religion and conscience

The Commission accordingly finds no interférence with the nght guaranteed by Article 9 para 1 of the Convention. It follows that this part of the application is manifestly ill-founded wiihin the meaning of Article 27 para. 2 of ihe Convenuon

As regards die apphcani's complaint of discrimination conceming dress in Turkish universities between foreign female students and Turkish female students, the Commission is not requu-ed to state ils opinion as to whether the facts alleged by Ihe applicant disdose die appearance of a violation of that provision, since, under Article 26 of the Convention, the Commission may only deal with a matter "after ail domestic remédies hâve been exhausted".

Thaï condition is not satisfied by Ihe mère fact diat the appHcani submitted her case to the varions compétent courts. The complaint submitted lo the Commission must also hâve been raised, ai least in substance, during the proceedings in question

In this connecuon the Commission refers to its constant case-law (cf, for example.

No. 5574/72, Dec. 21.3 75, D.R. 3 p. 10, al p 15; No 10307/83, Dec 6.3.84, D R. 37

p

113. atp 120)

ln this case the applicant did not raise during the proceedings before the Council

of

Slale the précise complaint she now makes before the Commission Moreover.

examination of the case has nol revealed any particular circumstance which might hâve

absolved the applicant from the obligation to raise this complaint m the proceedings menUoned.

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It follows that Ihe applicant has noi satisfied Ihe exhaustion of domestic remédies requirement and that this part of her application must accordingly be rejecled, pursuant to Article 27 para. 3 of the Convention.

For thèse reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

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